*1 applied through 52 than and that instructions 47 argued in other manner case damages arrived indicates, e., jury to if that the the issue of i. instruction at that In the absence some only barred a recov- issue. negligence of Shields juries approach in cases theory. to ery negligence instruction Shields theories, involving will no we inconsistent case, complex This was- a upon do what regularly to doubt called press took two weeks. majority has done in this case. time, nor the trial courts neither counsel expected perform functions to can be DONALDSON, J., concurs. perfectly. require it. The law does not Supreme the United States Court of person “is many ago en- stated trial, perfect to fair
titled sen- qualify that one one.” The failure to said hardly be 34 can
tence
instruction
unfair.
this
week trial
have made
two
theories, juries always possess do
sophistication the criti- necessary to make together
cal grouping distinctions. according
instructions to the various theo-
ries, case, as the trial court did this way help jury cope
problem. An even better method group theory given the instructions on a
together jury that and then instruct a relating particular
instructions number,
theory law, naming them solely plaintiff’s
late or defendant’s
particular theory, and to other. none
Thus, case, in this the trial court could plain-
well have jury advised the
tiff proceeding theo- separate on three
ries which proof contained inconsistent
quirements; numbers instructions
through 15 applied all of and 54
plaintiff’s claims, but that instructions
through applied only plaintiff’s war-
ranty theories; through 40 instructions 29
applied only plaintiff’s negligence theo-
ries;
applied
through
instructions 41
theories;
plaintiff’s
liability
strict
604, 619,
States,
R. M. Pocatello, for defend- ant-appellant. Park, Anthony
W. Atty. Wayne Gen., Croókston, Atty. Asst. Gen., Dennis Wil- J. liams, Deputy Atty. Gen., Boise, Kenneth Clarke, F. Prosecutor, Bingham County Blackfoot, plaintiff-respondent. DONALDSON, Justice. Cornwall, Ray appellant (de- Herman fendant) plea entered a rape. charge statutory I.C. 18-6101. He subsequently was sentenced to term рenitentiary in the state exceed fif- not to years. imposition teen From the prosecutes sentence he appeal. briefly, Stated the facts are as follows. Friday, On October drinking was in his home in Pocatello in company Phillip of his older brother victim, Cornwall. The who thirteen was offense, years of age at time of overnight guest in the home daughter. Defendant intelligence, that drinking average afternoon above he was started had brother neurotic, psychotic but that did have shortly During the course after work. drinking problem. go evening, left serious the home granted stayed recommended that defendant They at the bar until local bar. proba- the terms home to drink closed and then returned *3 longer had tion and stricter than usual. In some which defendant’s brother wine addition, report contin- recommended the left there. for treatment of counseling ued and a need home, Upon returning they discovered drinking habits. defendant’s excessive daughter that victim and defendant’s the hearing, At was afforded men the defendant wine. The had consumed the two opportunity the to of the accompany rebut the contents persuaded girls to then the two report and to investigation brother, the Phil- thеm to Blackfoot where wished Cornwall, present evidence he purpose of this whatever lip The lived. Although evi- his there was trip ostensibly some beer own behalf. was to secure testified contrary, dence the his wife Phillip to had in his trailer. which Cornwall that he was and father good men a husband Upon arriving Blackfoot, the two cooperate willing with she would be girls trailer while the two went into the probation granted. the ten min- authorities stayed in the After about car. imposed the The then sentence trial court utes, need daughter had appeals. from which defendant girls two the so the bathroоm facilities stayed The victim went into trailer. assignment of error is Defendant’s first men while living with the two room that the trial court abused discretion daughter used the facilities the defendant’s the de- failing probation to consider coaxing in the After some bathroom. (Supp. Code fendant. Idaho accompanied him the victim 1973) a authorizes trial court commute of inter- into the the act bedroom where sentence, sentence, suspend execution defendant was course occurred. grant probation withhold sentence and or charged accomplishing act with or any involving case conviction force. plea felony other than murder charge to a provides that The statute event, treason. After the Po- four returned to m., of the trial court to catello, within the discretion arriving there about 7:30 a. rather than grant alternatives reported these Saturday, victim October 8. The penitentiary. confinement incident her mother who turn ported police. it to the proba grant decision to While plead guilty, After trial tion is left to the discretion presentence investiga- court ordered trial court, safeguards procedural have certain 26, hearing tion. A held on March was in ar guide the court been established time, 1973, prior sentencing. At that court If the trial riving at its decision. had inves- court before it standards, will have fails to meet those report report tigation from Dr. Janet an abuse of its discretion. Such abused Anderson, had who tested psychologist subject for review proper is a discretion following his arrest. The Mitchell, Idaho v. 77 State Court. report investigation stated 115, v. (1955); 315 P.2d 289 normal intelli- defendant was of above 309, 508P.2d 141 Idaho 95 violence, prone to gence, that he passing judgment, Before exposed alcohol his sense when proba applicant for' grаnt court must The re- diminished. of moral values was one, at which if he desires hearing, risk tion a a fair port that defendant was stated op applicant be afforded must time the puni- recommended some sup which evidence present portunity psycholo- aspect sentencing. tive facts, shows ports his version defendant was report stated that gist’s expressed willingness employer probation, proper subject he is a cooperate (4) be- court. any adverse evidence rebuts port psychologist Edelblute, Ida- recommended fore the court. presentence investigation 469, bation and the (1967); 424 P.2d ho fair report that defendant was Freeman, stated pu- some Gish, risk but recommended Idaho (1963); State v. addition, aspect in the sentence. Defend- nitive where P.2d expressed to conform to willingness ant presentence investiga- has before it a es- probation program rea- report, applicant tablished. opportunity sonable to examine the present ex- evidence which rebuts or remarks made review of
plains report’s any of the contents. State passing sentence shows trial court before Grady, *4 proba- clearly that the court did consider (1965). The case was defendant in this and which it is did take those facts presented opportunity this does not as- and quired to in under consideration determin- sign as hearing error the denial such a imposing ing proper sentence. Before opportunity or to examine the or upon defendant, trial court present evidence his behalf. stated: guidelines Certain been have also “Now, crimes, generally, in the trial established which delineate what the trial judge consider, is he told that must must reaching court consider in its decision very seriously perhaps consider—and one grant probatiоn. of whether to The trial things he must consider foremost following court consider the in arriv person is whether not him or before ing at its (1) decision: all the facts and can we don’t find rehabilitated. Now surrounding circumstances offense you any handicaps, in men- measurable applicant convicted; which the (2) is tally physically. you find in We offender; applicant whether the is first not man understands that he has previous (3) the actions and character of up accomplish- been to standard with his applicant; (4) applicant whether the life, ments and he how handles might reasonably expected tо be rehabil- him, in fact including those around itated; (5) reasonably appears whether it your the welfare own children and applicant the terms abide you what have allowed them to be sub- and; probation, (6) the interests jected to. society protected in being possible from system “Now we have a where the future criminal applicant. conduct of the crimes, when come us either before Kauffman, State v. upon plea of guilty, conviction or a Mitchell, 614 (1971); State supra; has, instance, judge in the first Gish, supra; supra. duty to make certain determinations and Defendant argues that the trial court findings. you peniten- go Should to the failed to consider the following factors tiary, then the State Board of Pardons imposed when it prison term rather than & has Corrections further duties in han- grant probation. Defendant has his- (1) dling you, making determinations. tory problems alcohol, he commit- ted the intoxicated, offense plead- how, while dealing “Now I don’t know ed charge, there was no you with man has done what have who violence used in the done, attack. Defendant I finding could ever make a of ab- prior has no felony prior convictions. His certainty you solute at this time that record driving сonsists in- while again would not become involved toxicated driving conviction and a reckless thing. guess nobody I that. knows conviction. (3) Defendant has been stead- have make at We our determination ily employed point. But, for six half this in light of this what Kauffman, supra. The statement of the shows, anything don’t
record
I
find
proba-
imposing sentence
good
trial court made before
you
me that
are a
convinces
clearly
based
shows
that its decision was
point.
I'
to bear
tion risk at the
have
has
me
on reason rather than emotion. There
you
before
mind that while
come
ac-
the trial
abused
felоny,
showing
has
been no
no
that none
prior
appellant
refusing
grant
I have to
discretion in
tually
guess
But I
occurred.
none,
probation.
this
showing
Without such
accept
that there is
a record
Court will
disturb the decision of
that there have been no convictions.
H«
Hí
H*
[*]
H<
trial court.
“Now,
opinion,
demean
my
it would
assignment
second
Defendant’s
if I
you
committed
crime which
have
its dis
error is that
trial court abused
upon you
impose a sentence
were not to
in that
cretion
it sentenced
Corrections, which
Board of
peniten
to an excessive term in
state
you’re going
virtually mean that
tiary
aggravation
where there was no
‘
pedal the
soft
penitentiary.
We
present
estab
It
well
record.
being not
so-called deterrent effect
ap
in this
that where there
lished
state
important
remnants
anymore. Whatever
pears in the
error which
record no
fact,
my
there,
remain
it still
prejudiced
a sentence
point, a
opinion,
you are not at this
statute
within
limits established
risk;
society,
this
at
good
As
Court
abuse of discretion.
*5
point,
protection
entitled
some
is
98,
State,
King
at
stated
v.
The defendant has no rape. Idaho Code charge statutory punishable is rape v. probаtion. supra; v. State declares that State 18-6104 term prison or with Kauffman, supra. granting imprisonment in the state be ex- entirely year may within holding rests not less than one the trial court. to life at the discretion discretion of tended Ballard, (1969). sentenced to judge. Defendant was trict years based fifteen If the is exercise of discretion maximum sentence emotion, statutory limits. clearly it will upon rather than within reason aggrava- there was no not be true disturbed While Court. tion in the form of force or violence making California addic- statute narcotics present, certain present factors were tion а misdemeanor. Robinson v. State justify imposition California, a sen- 370 U.S. 82 S.Ct. attack, tence. At the However, time of the vic- L.Ed.2d 758 each of tim was age. thirteen She these cases specifically was limited was a daughter, close friend of defendant’s situation drug wherein an ad- alcoholic or guest home, ap- in defendant’s and was is being punished merely occupy- dict parently enough well acquainted ing each, de- that status. court fendant she point would have sufficient careful out that an alcoholic trust accompany him to him drug to Black- escape liability addict will not foot in the night. middle of the In addi- other merely criminal acts of his because tion, the defendant Thus, knew that victim status. was not had drinking been night wine that and it penal vented from imposing sanctions appears supplied that he her some of against merely because the wine and encouraged her drink it. was intoxicated at the time he committed the offense. assignment
Defendant’s final
er
ror
that the trial court failed to consider
appearing
There
in the record no error
alcoholism as an illness
rather than
crim
or abuse of the trial court’s discretion in
inal propensity. There can be little doubt
imposing
prisоn
term not
fif-
to exceed
requiring
alcoholism is
disease
years,
judgment
teen
is affirmed.
treatment
like
other disease.
See
Loeb,
Cecil
Medicine,
A Textbook of
SHEPARD,
J.,C.
concurs.
at
(10th
1959);
ed.
Manfred S. Gutt
macher
Henry Weihofen,
Psychiatry
BAKES, J., concurs in the result.
Law,
and the
at
(1952 ed.);
318-322
Jel
linek,
Alcoholism,
Concept
Disease
McFADDEN,
(concurring
at
Justice
However, defendant’s
*6
part
part).
and
in
dissenting
contention that the
being
status of
an alco
holic
I
portion
should absolve
concur in that
any liability
opinion
him of
for his
judgment
acts is
wherein the
is
without merit.
conviction
af-
Code
firmed,
part:
portion
states in
not
“No act
do
concur in that
§
committed
by
person
a
opinion
the
while
a state
wherein this
holds
voluntary
Court
imposed
intoxication is
that the
less
not
by
criminal
reason of
exces-
his having
provisions
been in
sive. Under the
20-
of I.C.
condition.”
eligible
the defendant will be
for con-
There have been several
decisions
recent
parole only
sideration for
after examina-
concerning criminal liability of chronic al-
tion and recommendation of one or more
drug
coholics and
In
addicts.
Driver v.
psychiatrists.
provi-
statutory
Under this
Hinnant, 356 F.2d
(1966),
the Fourth
sion this defendant could be
for the
held
Appeals
Circuit
Cоurt
that a
held
years
full term
fifteen
if for some rea-
chronic alcoholic could not be convicted
psychiatrist
son his examination
under a
public in-
punishing
state statute
accomplished.
never
They
toxication.
did
grounds
so on the
it
punish-
that
be
Great strides
been made in the sci-
would
cruel and
unusual
punish
penology seeking early
ment
ence of
rehabilita-
a chronic alcoholic for
being
tion of
compelled
drunk in that his
inmates. A term of
than fif-
condition
less
him
accomplish
to drink.
teen
the same re-
He was not
because
would
drunk
sult,
impetus
of his
give
own free
would
to the State
will.
similar result was
Columbia,
early
reached in
Board of Correction for
examina-
Easter v. District of
an
124 U.S.App.D.C.
my opinion
tion.
It is
that the
should
state would factors, In order to evaluate these the dis- psychiatric examination defendant presentence report trict could court must have required 20-223 so I.C. § positive plan. I be contains rehabilitation parole, be considered for join inclined to in the dissent of presentence report Justice did this action the However, presume must McFadden. we positive pro- not set forth a perform that the correction officials will gram appellant, therefore the for duties and therefore action the district must remanded and parole regular eligible proper court directed to demand rehabili- course. plan appel- resentencing tation before portion opin- remaining lant. of this part MсQUADE, (concurring Justice type positive ion reha- will describe the dissenting part). in a plan bilitation be contained agree majority I presentence report, with the and will discuss impo- trict court has wide discretion role of in the formation defense counsel sentence, action should reports. sition of but this presentence evaluation resen- be remanded the district court for require- begin To discussion of has discre- tencing. The district court report’s recommen- ments impose “probation such terms under rehabilitation, purpose of dation for (cid:127) necessary and and conditiоns deems presentence report be defined. * * expedient properly exer- To that, of the best definitions is One discretion, court has cise its district hands so single “No instrument in our plan for obligation positive to insist neatly typifies modern correctional present- the defendant be rehabilitation of philosophy presentence re- as does the presentence report. The district ed in the port. only being to de- Its reason sentencing dis- only court can exercise partic- pict dynamics the intimate all facts apprised of cretion when it is ular enable individual offеnder concerning the defend- and circumstances dispose of his case with opportunities ant includes his in- plan tailor-made corrective habilitation. tent, knowledge whereas without such punitive.”3 disposition can duty court to demand the district positive plan from the purpose From the stated *7 imposing bation office before plan ports, it that the rehabilitation is clear holding the cases also arises out of our presen- important in a is the element most fac- following consider the trict court must “tai- report provides tence because probation: considеring request tors in court, and thus plan for the lor-made” good as the presentence report is sur- and circumstances “1) All the facts plan. rehabilitation de- which the rounding the offense court, convicted; de- To at all useful to the district be 2) whether fendant offender; must be 3) the rehabilitation recommendation is a first fendant It program de- for the defendant. positive of the and character actions vious pro- than whether recommend more fendant; 4) should whether granted, not be but reha- or should expected bation should reasonably be Mitchell, 115, P.2d 315 19-2601(2). 289 Idaho 1. I.C. § P.2d 3.Keve, (1973) ; Trow see also: State v. Professional Character Parole, Report, 1973) ; (Idaho Probation bridge, Presentence ; 1970). (R. Kauffman, L. eds. & Carter Wilkins steps rather it should set example forth what need As an it means of what to for- prevent be taken to positive plan, gener- reoccurrence of rehabilitation mulate the defendant’s criminal behavior.4 In for- al set forth recommendations will be fol- mulating positive plan rehabilitation, lowed the detailed information that report explain the must “tailor-made” be included to make a strengths weaknesses and plan gener- of the This list of defendant. explain and it should proposals by any how rehabilita- al is not means com- program tion rely plete on the defendant’s programs list of that can be for- strengths and correct his positive weaknesses.5 mulated in a gram.
“Much more is needed in a
report than a mere recital of facts about 1. PARTICIPATION IN ALCOHOL- tangible employment, items as AL- ICS ANONYMOUS OR OTHER sources, address, residence, type of REHABILITATION COHOLIC affiliation, church A so on. news- PROGRAMS paper reporter pull together can the bare person’s facts in a history trained plan A suggesting the use expected officer should be programs spe- treatment alcoholic develop subjective much more ele- cifically suggested program, describe the ments in background of a defendant establish whether the defendant would importance. and assess their relative If qualify program, for the determine wheth- helpful sentencing to be to a meetings spe- er he can attend set judge analysis it should contain a careful attendance, cific for his estimate dates problems, the defendant’s needs and the duration of treatment and its chances concerns; his feelings attitudes and If success. other members of the de- himself, family, about his and those with family fendant’s or his friends contribute contact; whom he daily comes in his alcoholism, to his alcoholism own values; sense of his outlook on life in it should be determined whether are general; feelings and attitudes about willing participate program. Fi- many things including the offense in nally, explain the recommendation must which he is involved.” why program the alcoholism will deter fu- ture criminal conduct the defendant. In addition describing the social rela- tionships individual, the role of 2. PSYCHOLOGICAL COUNSELING relationships those in the rehabilitation COUNSELING GROUP AND/OR plan explained.7 should be positive psychological The availability of counsel- habilitation program must more include ing group counseling for the defendant than statements that certain services would willingness participate and his in it must helpful dealing with the defendant’s group The counselor or problems, established. but rather it must abe schedule appointment session and an must be named that are activities available. limita- One up for the defendant. The schedule set scope probation plans on the is that officer and the counselor they may impose conditions that are *8 impossible fulfill, e., short state- group for the defendant to i. leader should submit explaining why they total abstinence for believe the an alcoholic.8 ments Keve, Investigates Circuit, 4. F.R.D. P. The Probation Officer Institute —Fifth (1969). (1961). Id., 153; Keve, supra, 5. States 7. Office of United note 3 at 87. Administrative Report Courts, the Presentence “Objectives Sharp, 6. Presentence L. of the Sentencing, Oyler, Report,” 8. in Pilot Institute (1959) ; also: L. F.R.D. see Sentencing Sharp, Report,” “The Presentence defendant, OTHER and RELATED OR 6.CHURCH
counseling will assist the DE- The du- VOLUNTARY PROGRAMS estimate the chances of success. TO counseling must SIGNED TO ASSIST PERSONS ration of the recommended financing DEAL THEIR PROBLEMS calculated and a means WITH be counseling must be set forth. community availability The based all investigated and the de-
services must be should informed these fendаnt be EDUCATION 3. grams. Many programs should be of these of the de- specific goals The educational assisting the considered in the context of vocational, fendant, whether academic family involving his whole relevancy to his forth must be set and spe- program. If it determined explained. The criminal must be behavior helpful programs cific de- would be housing possibility of tuition of waiver fendant, description program of the then a investi- should be costs at state institutions crimi- it relates to the defendant’s how availability of gated as as the counsel- well in the nal be included behavior must campuses. aсcept- The ing services on the report. A letter from the leader insti- into named ance of the defendant assist program how it will stating of the established, the courses tution must be included the defendant should also described, the means will attend report. payment discussed. summary, positive In program step by step schedule must be FAMILY COUNSELING 4. pursue. spe- It must the defendant cifically set forth the needed services counseling possibility family' investigated which have insure that been family, and his services for they A to the defendant. are available participate in them willingness to and their possible listing programs mere coun- A schedule be determined. participate in urged defendant should be be established. seling should sessions meaningless gives the district court why explaining letter from counselor imposition guidance no real de- be beneficial his services would presentence report fails If sentence. the recom- be included with fendant should program positive set forth presentence in addition mendation defendant, it fails to fulfill the for the appraisal of the need investigator’s recommending very purpose a “tailor- family from counsel- benefit to be derived plan of made” rehabilitаtion. ing. Even if the officer unable plan, he
to formulate a rehabilitation FINANCIAL COUNSELING availa- prepare should list of exhaustive community aid the court ble services to setting forth the addition to financial sentencing.9 presentence resources of the an active role district courts have fi- investigator whether should determine reports. presentence the formulation of counseling nancial is needed the defend- They specific rehabili- request should availability ant and the of financial coun- if investigated, and programs tation seling be established. Financial should posi- report dоes not contain family counseling will often be included in rehabilitation, they should program tive counseling. The willingness impor- require it to be formulated. participate counseling in financial must be tance should meetings set forth as well as a schedule and his also to the defendant be stressed with the financial counselor. attorney, urged coop- *9 Keve,supra,
9. P. note 153. at probation report. erate with the officer preparing tence The submission of rehabili- encouraged the their plans by attorneys to submit tation pro- defense will plans own for rehabilitation. vide the courts with additional alternаtives sentencing process. from in choose juris- The district has continuing diction over on while procedure sentencing The of defendants probation modify and can the terms system prison proba- using and not probation at time.10 In accordance programs rehabilitation has resulted this continuing jurisdiction, following, trict court require of- century ‘prison reform,’ “After a of our periodic (at ficer to quarterly) submit least country system has a penal that is a dis- follow-up reports prog- which review the taxpayer mal failure. The American has ress of the defendant under the court im- been deluded believing pe- into that our posed probation necessary, plan, and if system provides nal treatment and reha- probation plan could then be modified. bilitation for criminal offenders while it follow-up reports provide The protects public by keeping offenders evaluating district court with means of year fiscal During incarcerated. reliability alone, taxpayer spent American grams. $1.5 400,000 keep prisoners billion incar- play defense active counsel must State, Federal, cerated in prison and local role in the formulation of facilities. And in return for their mon- reрorts.11 This role arises out of ey taxpayers victims of are the more duty overall to their client. percent and more felonies—80 “This role gathering extends to the are committed former offenders. A evaluation of facts relevant sentenc Investigation recent Federal Bureau ing, important, presen and most to their study shows approximately two- tation in sentencing. court at the time of thirds all offenders released from Certainly shortage in view of the prison are rearrested within —a competent lawyers perform all the le per- nationwide recidivism rate of 66% gal proсess, tasks in the criminal it cent. Since the rate recidivism is the rely exclusively would be unwise to on rate at former offenders commit defense gather counsel to and evaluate crimes, new seems that would be the However, sentencing facts. the ultimate best barometer of the success or failure responsibility ensuring that facts are penal system.” gathered persua and evaluated sively presenting them rests to the court development specific Through the of more with counsel.” plans offi- attorney, cer defense the district By gathering evaluating the facts rele- range court will hаve a wider of sentences availability vant to sentencing and the choose from to “dismal fail- services, avoid community attorney the defense prison ure” system. submitting presen- often own Justice, Report: Oyler, supra, 8; Task Force Courts 10. note I.C. § (1967). 20-221. Lawyers Dash, 11. at The Defense Role on Law En- 12. President's' Commission Case, Sentencing Stage of a Criminal Justice, forcement and Administration ; Feit, De- F.R.D. To Guide Report: Force The Courts 19 Task Post- fense Exercise Counsel of His Crime, Responsibilities, on Reform Committee conviction House Select Crim.L.Bull. Systems, H.R.Rep. (1973) ; 93- Correctional The President’s Commission Our Cong., 1st Sess. 47 and the Administration 93rd Law Enforcement